The NLRB is carving zones of privacy in the US electronic workplace, and maintenance of your email policy could be an unfair labor practice.

In 2007, the National Labor Relations Board (the “Board”) in Guard Publishing Co. d/b/a Register Guard held that employees do not have a right under the National Labor Relations Act (“NLRA”) to use an employer’s email system for union-related communications. Since then, employers have had broad latitude to implement and enforce workplace policies restricting employee email use for nonwork purposes. The only significant limitation has been that restrictions on the nonwork use of an employer’s email system must be applied in a nondiscriminatory manner. In other words, an employer could not prohibit only union-related emails and solicitations. The Register Guard ruling was generally based on the Board’s comparison of an employer’s email system to an employer’s bulletin board, copy machines, and public address systems and prior decisions holding that an employer could prohibit nonwork use of such equipment. On December 11, 2014 in Purple Communications, Inc., the Board reversed the Register Guard ruling and held that employees have a presumptive right to use their employer’s email systems for nonwork NLRA-protected purposes.

The Board’s Decision in Purple Communications

In Purple Communications, a union challenged an employer’s rule prohibiting employees from using the employer’s email system for “[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and “[s]ending uninvited email of a personal nature.” This gave the Board the opportunity to reconsider its earlier ruling in Register Guard. The Purple Communications Board labeled the Register Guard ruling, which was decided by a Republican-majority Board, “clearly incorrect.”

The Board criticized the Register Guard ruling on several grounds. First, the Board argued that the Register Guard ruling gave too much deference to employer property rights at the expense of employees’ NLRA-protected right to engage in concerted activity with respect to terms and conditions of employment. The Board argued that employees’ must be able to communicate with each other in order to exercise their statutory rights, citing the long-standing rule that an employer may generally prohibit oral solicitation at work only on employees’ working time. Second, the Board believed the Register GuardBoard “inexplicably failed to perceive” how important email communications are to employees engaging in protected activity today. The Board cited to the increased use of email in the years since Register Guard was decided in 2007. The Board also concluded that email should not be treated the same as other physical company property, such as bulletin boards, copy machines, and public address systems, because the use of email by one employee does not interfere with or hinder another employee’s use of email. Indeed, the Board questioned the validity of all prior cases holding that employers can broadly prohibit nonwork use of company equipment, thus signaling that the Board may be primed to change the rules regarding employee use of those facilities in future cases.

In Purple Communications, the Board held that employers that provide email access to their employees must allow those employees to use email for NLRA-protected activities, including union-related activities, on nonworking time, unless they can demonstrate special circumstances that make a complete ban of nonwork use of email necessary to maintain production or discipline. The Board indicated that “we anticipate it will be the rare case where special circumstances justify a total ban on nonwork email use by employees” and that such special circumstances must be more than theoretical. The Board stated employers can, however, establish uniform and consistently enforced restrictions, such as prohibiting large attachments and audio/video segments, if the employer can demonstrate that such use would interfere with the email system’s efficient functioning. The Board also stated that the availability of other methods of electronic communication – e.g., Facebook, blogging, or personal email accounts – and the availability of face-to-face communication is not relevant and cannot be relied upon to justify a complete ban.

The Board clarified that its ruling in Purple Communications addresses only email systems and the use of email systems by employees, rather than by nonemployees. Additionally, an employer is not required to grant email access to employees if it has chosen not do so. The Board rightly anticipated that its ruling would raise questions about an employer’s right to ensure that employees are using email for nonwork purposes only during nonworking time. The Board clarified that its ruling does not impact an employer’s right to monitor its computer and email systems for legitimate management reasons, such as ensuring productivity and preventing harassment. An employer may not, however, increase monitoring during union-organizing campaigns or focus its monitoring efforts on protected conduct or union activists. The Board also confirmed that an employer can continue to notify employees that it will (or reserves the right to) monitor their email communications for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer’s email system.

Practical Implications

Relying on Register Guard, many employers have adopted or maintained policies prohibiting or limiting employee use of employer email systems for nonwork purposes. Most such policies are now facially invalid, and the maintenance of them is an unfair labor practice under the NLRA, even if not adversely applied to a particular employee. Employers that provide email access to employees should review their email policies and practices to ensure that they comply with the standards set forth in Purple Communications. Any nonwork limitation that infringes on employees’ NLRA rights must be justified by a “special circumstance,” which will be difficult to establish.

In Purple Communications, the Board questioned the validity of all prior cases holding that employers could broadly prohibit the nonwork use of their physical property. In particular, the Board discussed and rebutted at length the justifications for protecting employer telephone systems, suggesting that they could be the next to fall. Thus, employers should also revisit their policies prohibiting nonwork use of bulletin boards, copy machines, telephone systems, and other physical property and consider whether manageable restrictions are possible, rather than complete bans.